Courts’ analysis of the adequate representation factor under Rule 24 has failed to fully assess the interests of impacted communities. Moreover, the analysis has
382. See Martin Arnold, Police Board Absolves Gilligan in Slaying of Negro Teen-ager; No Violation of Rules Found—Shooting Led to Riots in Harlem and Brooklyn, N.Y. TIMES, Nov. 7, 1964, at A1.
384. Id.
385. Statement by the President Following the Signing of Law Enforcement Assistance Bills., supra note 381.
386. ELIZABETH HINTON, FROM THE WAR ON POVERTY TO THE WAR ON CRIME: THE MAKING OF
MASS INCARCERATION IN AMERICA 87 (2016) (discussing the Johnson Administration’s provision of money to municipal law enforcement agencies for the hiring of more officers, to “professionalize” the agencies, as well as the provision of military-grade equipment).
387.
388. RUSHIN, supra note 377, at 3–8 (discussing how for 150 years of American history the federal government has, on the whole, failed to consistently intervene to enforce the rights of local community members while deliberately choosing to ignore police abuses).
failed to give full consideration to the ways in which the interests of the federal government are not fully aligned with those impacted by police violence. The DOJ model of community engagement and consultation does not enable the fed- eral government to adequately represent the interests of communities impacted by police violence. Federal courts that presume the federal government adequately represents those interests have sorely missed the mark of remedying unconstitutional police practices. Expanding the analysis beyond the limited focus of whether the federal government has an interest in a successfully imple- mented consent decree is worth consideration.
Texas v. United States provides an intervention framework useful in the con- text of marginalized communities and the federal government.389 The Fifth Circuit in that case held that the presumption of adequate representation is suc- cessfully rebutted when a movant identifies an adversity of interests between itself and the government representative.390 An adversity of interests can be dem- onstrated by showing that the government has interests connected to its relation- ship with the other existing party and the courts with jurisdiction.391 The court stated that “[t]he lack of unity in all objectives, combined with real and legitimate additional or contrary arguments, is sufficient to demonstrate that the representa- tion may be inadequate.”392 Movants are required to make a connection between the claimed divergent interests and how they affect the litigation.393
As they were in Texas v. United States, the federal government’s interests in DOJ-initiated police consent decrees are distinctly different from the interests of impacted communities. The Attorney General made the Trump Administration’s desire to have a good working relationship with local law enforcement widely known.394 Considerable financial resources were provided from the federal gov- ernment to municipalities and their police departments.395
See Alicia Parlapiano, The Flow of Money and Equipment to Local Police, N.Y. TIMES (Dec. 1, 2014) https://www.nytimes.com/interactive/2014/08/23/us/flow-of-money-and-equipment-to-local-police.html.
These resources included grants from Homeland Security and the DOJ, as well as military surplus equip- ment.396 The DOJ has also failed to include community interests and perspectives beyond the investigation phase of its police reform efforts. Court filings indicate that the DOJ has desired to have sole control over the implementation of the reform mandates.397 Finally, the DOJ readily admitted that it has a responsibility to
389. 805 F.3d 653 (5th Cir. 2015). In Texas, noncitizens were permitted to intervene in an action regarding Homeland Security’s deferred action program after successfully rebutting the presumption of adequate representation by the federal government. Id. at 663. Intervenors pointed to the governmental interests in an expansive interpretation of government authority, enforcing immigration laws, and maintaining a working relationship with the states to demonstrate divergent interests. Id.
390. Id. at 661–62.
391. See id. at 662.
392. Id. (alteration in original) (quoting Brumfield v. Dodd, 749 F.3d 339, 346 (5th Cir. 2014)).
393. See id.
394. See OFFICE OF THE ATTORNEY GEN., supra note 5.
395.
396. Id.
397. See supra note 111.
represent the interests of all citizens.398
This lack of unity in objectives between the DOJ and impacted communities has manifested itself in ways that undoubtedly have concrete effects on the litiga- tion. The DOJ has emphasized the importance of strong relationships with law enforcement over the importance of consent decrees.399 That prioritization led to the DOJ’s failure to honor its agreement in principle with the City of Chicago.400 In Baltimore, the DOJ officially attempted to delay, and perhaps attempted to abandon, reform efforts.401 This, coupled with the federal government’s supply of military grade weapons and other technologies to local law enforcement efforts, indicates that its diverging interests impact the litigation.
The current top-down model that excludes community insight from the consent decree process prioritizes efficiency over the need to enable impacted commun- ities to build positive working relationships with their local law enforcement agencies. As it currently stands, litigation reform efforts serve only to reinforce the authoritative and hierarchical frameworks that divide community and law enforcement by relegating impacted communities to nonparty status.
Courts inclined to recognize that the federal government does not adequately represent the significant interests of impacted communities will have legitimate, practical concerns over the size and scope of the litigation. It is the courts’ respon- sibility to ensure that reform efforts do not become unduly burdened by divergent viewpoints and agendas that may prevent the court from maintaining order.
There is a balance to be struck between those practical concerns and the courts’
responsibility to ensure that interested parties are not excluded from litigation.
The following discussion outlines the framework for establishing the outer edges for evaluating motions filed by community organizations under Rule 24.
1. Significant Interest Demonstrated by Community Engagement and Efforts to Reform Questionable Police Practices
Some will undoubtedly be concerned that favorable rulings for community organizations seeking intervention may open the floodgates for intervenors with varying perspectives and motives to unduly burden the reform process. Insight and guidance from those impacted by police misconduct are integral components to a healthy and accountable law enforcement agency. They are also essential to the implementation of successful reform processes. Courts seeking to ensure that the insight and expertise of impacted communities are being utilized in a mean- ingful way should examine the historical engagement efforts of the putative inter- venor. As seen in previous motions to intervene, community organizations in certain jurisdictions have worked for many years to bring policing concerns to the attention of local elected and selected officials. This community perspective
398. See DOJ CIVIL RIGHTS DIV., supra note 78, at 13–14.
399. See OFFICE OF THE ATTORNEY GEN., supra note 5.
400. See United States’ Statement of Interest Opposing Proposed Consent Decree at 1–3, Illinois v.
City of Chicago, No. 1:17-cv-06260 (N.D. Ill. Oct. 12, 2018), ECF No. 160.
401. See Motion for Continuance of Public Fairness Hearing, supra note 34, at 1.
should be buttressed by the organization’s knowledge of both current and histori- cal community–police relations, local police department practices and policies, and community concerns about the police services received. Although several of the organizations highlighted in this research had long tenures within their re- spective communities, length of engagement around reform efforts should not be dispositive. It could, however, be used as a factor to demonstrate how a compara- tively short DOJ investigation should not be presumed to usurp the need for direct community representation in police structural reform litigation.
2. Specious Intervention Attempts by Anti-reformists Do Not Meet the Intervention Standard
The legislative intent and purpose of § 12601 is to provide injunctive relief to those impacted by unconstitutional policing. Structural police reform litigation under § 12601 is not the appropriate vehicle or mechanism for anti-reform senti- ment or advocacy. Rule 24, although liberal, does contain essential requirements.
Of most relevance here is the requirement that a movant possess an interest that is likely to be impaired by the litigation. By the time that the parties have entered into a consent decree, the DOJ has determined—and the local govern- ment has agreed—that the federal government has enough evidence to support a finding of pervasive unconstitutional policing. An outside party asserting an inter- est against the decree would essentially be advocating for the continuation of unconstitutional practices by law enforcement for which there can be no cogniza- ble interest. Accordingly, intervention by organizations should be limited to com- munity organizations that represent the interests of marginalized communities impacted by the pattern or practice of unconstitutional policing. To date, the only conceivable intervention attempts against reform efforts have come from police unions.402
Impacted community organizations granted intervention during the remedial phase of reform litigation can serve to benefit the implementation process. As dis- cussed above, the historical perspective and on-the-ground insight to be gleaned from marginalized communities are essential components to the reform process.
Giving equal party status to impacted communities and local law enforcement also serves to provide a foundation for positive community–police relations beyond the reform process. To that end, providing a seat at the table to impacted communities is aligned with the statutory aims of § 12601. The same cannot be said of community and civic organizations whose primary interest lies in support- ing local law enforcement from federal reforms. Any such specious claims are tangential to reform litigation and do not meet the requirements of Rule 24(a). It would be appropriate to rebuff attempts to intervene by those with the purpose of thwarting reform efforts or not impacted by police violence.
402. Hardaway, supra note 50, at 193–98 (arguing that police union assertions of collective bargaining interests in police reform litigation should not satisfy Rule 24(a) because those rights—
limited to wages, hours, and other conditions of employment—are outside the scope of the managerial policy revisions covered by law enforcement consent decrees).
3. Collaboration and Joint Legal Representation of Community Organizations Limiting the number of attorneys of record is another way to prevent structural reform litigation from becoming unnecessarily unwieldy. In many instances, there have been several community organizations working to support those impacted by police violence and misconduct. As discussed above, some of these organizations have worked to remedy police misconduct in a number of different ways over the course of several years. Many of those efforts began before the DOJ initiated its investigations. Indeed, many community organizations have been instrumental in gaining the attention of the DOJ and assisting in its investigations.
Although those efforts are invaluable, it is important to avoid situations where there are a number of lawyers representing each distinct and marginalized com- munity. For instance, it is conceivable that the LGBTQIAþ, homeless, and Black communities impacted by police violence would be supported by different com- munity organizations. It is impractical to expect, however, that each of those organizations be represented by separate and distinct legal counsel. Instead, it should be required that the community organizations representing impacted com- munities agree on the selection of a trial counsel team to represent the collective interests of each marginalized community. To streamline that representation, the organizations should be expected to independently reach a formalized agreement on their objectives, priorities, and means for resolving differences. The court should not be required to address or manage those issues.
CONCLUSION
Organizations seeking intervention in other contexts have successfully rebutted the presumption of adequate representation.403 However, federal courts presiding over DOJ-initiated police reform cases have without exception found that com- munity organizations have failed to rebut the presumption of adequate representa- tion.404 The decision in United States v. City of Los Angeles is often cited to support the denial of motions to intervene as a matter of right filed on behalf of community organizations.405 But the court’s analysis of community efforts to intervene is inherently deficient in identifying and addressing the interests of impacted communities. The current top-down model being used to reform local departments has historically excluded impacted communities despite recognition that input and engagement from those stakeholders are key components.
Not only is asserting that the federal government adequately represents the interests of communities impacted by police violence factually inaccurate, but also court decisions denying community organizations the right to intervene in police reform litigation run counter to the purpose and intent of Rule 24. The
403. E.g., Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995);
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 529 (9th Cir. 1983); Idaho v. Freeman, 625 F.2d 886, 887 (9th Cir. 1980).
404. See, e.g., United States v. City of Los Angeles, 288 F.3d 391, 402–04 (9th Cir. 2002).
405. Id.